2 June 2016 – On 11 March 2016 Mylan N.V.’s Dutch counsel sent a letter to the Dutch Investors’ Association (Vereniging van Effectenbezitters or VEB) and the European Investors Association in response to their letter of 10 March 2016. First, it was agreed that the letter of 11 March 2016 would not be published. With a view to the ongoing discussions between VEB and European Investors, and legal counsel of Mylan it seems appropriate to publish this letter and other relevant correspondence.
On 6 April 2016 a detailed analysis of Mylan’s arguments concerning article 2:107a DCC was sent to the attorney-general at the Public Prosecutor’s Office (advocaat-generaal bij het ressortsparket).
Course of events
As to Mylan’s counsel’s letter of 11 March 2016, VEB and European Investors have the following comments:
Mylan repeatedly insisted that VEB and European Investors should disclose their constituency. This can only be regarded as a misrepresentation of the relevant legal provisions, as it forms a denial of the (legal) position of public interest groups as VEB and European Investors laid down in article 3:305a of the Dutch Civil Code. Both are public interest groups, representing the interests of a wider group defined in the articles of incorporation, i.e. investors and, in particular, retail investors. Dutch law grants the right to public interest groups to legally represent the interests of the population it represents. For doing so, no quantifiable criteria apply which, for instance, would be the case for shareholders desiring to initiate inquiry proceedings with the enterprise chamber of the Amsterdam court of appeal. Therefore, any further information concerning their constituencies is not relevant.
Mylan repeatedly emphasized the positive effects of the contemplated transaction. VEB and European Investors have, however, emphasized that they had not evaluated the merits of the contemplated transaction and for that reason had and have no opinion on the transaction as such.
As to Mylan’s explanation for its interpretation of article 2:107a DCC, most arguments have been discussed in our letter of 10 March 2016.
Mylan offered one new argument by referring to the UniWest-case in support of its statement that figures in the explanatory notes to the balance sheet should be considered for calculating the threshold of article 2:107a(1)(c) DCC. This, we believe, lacks relevance. The UniWest-case pertained to the explanatory notes to the balance sheet concerning the difference between book value and going concern value of certain assets as per the balance date. By contrast, the relevant language in the explanatory notes to Mylan’s 2014 financials concerned changes that would take place after the balance date and which were still uncertain as of 31 December 2015 due to pending merger clearance proceedings.
Following the letter of 11 March 2016, a meeting between Mylan’s counsel and VEB and European Investors took place.
As explained during this meeting, VEB and European Investors saw no reason in changing their critical stance to Mylan’s decision to deny an important shareholders right. For that reason, VEB notified the attorney-general of the transaction on 6 April 2016. Together with this request a detailed analysis of Mylan’s arguments concerning article 2:107a DCC was provided. As for now, this analysis will not be published.
On 27 May 2016 VEB received a request from the public prosecutor’s office to provide contact details of Mylan’s counsel.
On 30 May 2016 Mylan informed VEB and European Investors that a request for information from the public prosecutor’s office had been received. On the same date, Mylan’s counsel sent an e-mail to VEB and European Investors which contained no new arguments.
Please find here the FAQ concerning the involvement of the attorney-general in the Mylan-Meda matter.